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Mandi fee = Glaxo India Ltd., set up an industrial unit at Aligarh for the manufacture of what is sold in the market under the brand names Glacto, Complan, Farex, Glucon D and other products generically called milk foods/weaning foods and energy beverages. It is not in dispute that the manufacturing process undertaken in the said unit produced ghee as a by- product of the said items. It is also not in dispute that with effect from 1st October, 1994, the Family Products Division of Glaxo India Ltd. was taken over by Heinz India Pvt. Ltd. who continued manufacturing the products mentioned above including ghee as a by-product of its manufacturing activity. 3. In terms of Section 17(iii) of the Act, sale of specified agricultural produce within the Mandi limits attracts levy of what is described as Mandi Fee from the person effecting the sale. The Mandi Samiti accordingly started demanding the said fee from Glaxo India Ltd., upto the year 1994 and from Heinz India Ltd., from 1994 onwards qua sales effected by the said two companies of its products including ghee. These demands were resisted by both the companies primarily on the ground that bulk of the ghee produced in their unit at Aligarh, if not the entire quantity, was sent out of the Mandi limits on stock transfer basis and that there was no sale involved in such transfers so as to attract the levy of the Mandi Fee on the same. As a matter of fact, orders passed by the Mandi Samiti and the Mandi Parishad show that sufficient opportunity was indeed afforded to the appellants and the matter had remained pending for a number of years before those authorities. 60. Mr. Chandra contended that the appellants had been requesting the authorities to indicate as to what kind of material would satisfy them but since the authorities had failed to respond to that query the appellant had not produced the bulk of the material which was relevant and available with them. We do not think that such a procedure was legally permissible or even called for in the facts and circumstances of the case. As to what material would be sufficient to prove the case of the party who goes to the Court for relief is a matter for the party or those in charge of its legal affairs to determine. No litigant can ask for guidelines from the Court or statutory body as to the evidence which the party should adduce to substantiate its claim. The query made by the appellants as to what material if adduced would satisfy the authorities was, therefore, misplaced and a red herring to say the least. This is particularly so when the appellants were in no way handicapped on account of lack of resources or capacity to get the best of legal advice. Companies with such tremendous resources as the appellants before us cannot find a shortcut to the discharge of their obligations under the law by asking the Court or the authority concerned to indicate as to what kind of evidence would be sufficient in its opinion to entitle them to the refund of the amount paid or payable towards market fee. 61. So also, no remand ought to be made only to enable a party to produce additional material. A remand is neither mechanical nor a routine affair. If there is nothing wrong in the orders under challenge, there is no question of interference with the same. There is no reason for this Court to set the clock back and start a process which would take the parties another decade or so to come to terms with the problem. 62. In the result these appeals as also W.P. (C) No.144/2005 fail and are hereby dismissed with cost assessed at Rs.15,000/- in each case.

REPORTABLE

Uttar Pradesh Government Seal

Uttar Pradesh Government Seal (Photo credit: Wikipedia)

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1476 OF 2006

 

Heinz India Pvt. Ltd. & Anr. …Appellants

Versus

State of U.P. & Ors. …Respondents

 

(With Civil Appeal No.1478/2006, Civil Appeal No.1477/2006 and W.P. (C)
No.144/2005)

 

 

J U D G M E N T

T.S. THAKUR, J.

1. These appeals by special leave arise out of an order dated 20th
August, 2004, passed by the High Court of Judicature at Allahabad whereby a
batch of writ petitions challenging an order passed by the Director, Rajya
Krishi Utpadan Mandi Parishad, Lucknow, dated 3rd July, 1997, under Section
32 of the Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964 (hereinafter
called ‘the Act’), have been dismissed. The order passed by the Director,
Rajya Krishi Utpadan Mandi Parishad pertained to 19 revision petitions of
which 8 petitions were filed by Glaxo India Ltd. relevant to the period 1st
November, 1990 to 30th September, 1994 while the remaining 11 petitions
pertained to Heinz India Pvt. Ltd. relevant to the period between 1st
October, 1994 and 31st May, 1996. During the pendency of the Special Leave
Petitions, Writ Petition (C) No.144/2005 was filed under Article 32 of the
Constitution of India, inter alia, praying for a writ of certiorari,
quashing order dated 25th September, 2004 passed by the Deputy Director
(Administration) Krishi Utpadan Mandi Parishad, Gomti Nagar, Lucknow in
another batch of revision petitions (pertaining to the period between 3rd
June, 1996 and 30th April, 2004) and an assessment order dated 7th July,
1998 passed by the Krishi Utpadan Mandi Samiti, Aligarh. A declaration to
the effect that the goods removed from the petitioner’s unit at Aligarh to
places outside the State of Uttar Pradesh were by way of stock transfer and
no Mandi Fee was payable on such transfers has also been prayed for. The
facts giving rise to the appeals and the writ petition may be summarised as
under:

2. Glaxo India Ltd., set up an industrial unit at Aligarh for the
manufacture of what is sold in the market under the brand names Glacto,
Complan, Farex, Glucon D and other products generically called milk
foods/weaning foods and energy beverages. It is not in dispute that the
manufacturing process undertaken in the said unit produced ghee as a by-
product of the said items. It is also not in dispute that with effect from
1st October, 1994, the Family Products Division of Glaxo India Ltd. was
taken over by Heinz India Pvt. Ltd. who continued manufacturing the
products mentioned above including ghee as a by-product of its
manufacturing activity.

3. In terms of Section 17(iii) of the Act, sale of specified
agricultural produce within the Mandi limits attracts levy of what is
described as Mandi Fee from the person effecting the sale. The Mandi Samiti
accordingly started demanding the said fee from Glaxo India Ltd., upto the
year 1994 and from Heinz India Ltd., from 1994 onwards qua sales effected
by the said two companies of its products including ghee. These demands
were resisted by both the companies primarily on the ground that bulk of
the ghee produced in their unit at Aligarh, if not the entire quantity, was
sent out of the Mandi limits on stock transfer basis and that there was no
sale involved in such transfers so as to attract the levy of the Mandi Fee
on the same. Even so, the companies appear to have continued removing their
goods from the Mandi limits in accordance with the procedure in vogue at
the relevant time. In Krishi Utpadan Mandi Samiti & Ors. v. Shree Mahalaxmi
Sugar Works & Ors. (1995) Supp (3) SCC 433, decided on 2nd February, 1995,
this Court noticed the Explanation to Section 17(iii) of the Act and
observed that there was a presumption against the dealers. This Court held
that in view of the said presumption it is open to the Mandi Samiti to
raise demands against the dealers before the issue of passes. If there is a
valid rebuttal to the presumption and it is shown that no sale took place
within the notified market area the dealers will be entitled to the passes,
otherwise not. This Court further held that even if the dealers are
compelled to pay the market fee as demanded it shall be open to them to
challenge the same in the manner provided under the Act. This implied that
if the claim of the dealers that the goods were not being removed pursuant
to any sale transaction was rejected and a demand for payment of Mandi Fee
raised, the aggrieved dealer could question that demand in appropriate
proceedings.

4. It is evident from a reading of the order passed by the Mandi
Parishad that the earlier procedure of issuing free gate passes remained in
vogue upto February, 1995, whereafter the Mandi Samiti started issuing gate
passes only on payment of the Mandi Fee demanded by it. This change came
about as a result of the aforementioned decision of this Court in Shree
Mahalaxmi Sugar Works (supra). Subsequently, in Krishi Utpadan Mandi Samiti
v. M/s Saraswati Cane Crusher & Ors. (Civil Appeal Nos. 1769-1773 of 1998),
decided on 25th March, 1998 this Court prescribed the procedure to be
followed in the matter of issue of gate passes, making of provisional
assessment and the time frame for making a final assessment.

“We are satisfied that the orders of this Court afore-referred to
would need some repair work. We treat the said order to be
conceiving of a provisional assessment where after doors are opened
for a final assessment. We conceive that when demands are raised
by the Krishi Utpadan Mandi Samiti against a trader before he could
ask for transit of goods outside the market area, the trader would
be entitled to tender a valid rebuttal to say that no sale had
taken place within the notified area and that if the explanation is
accepted there and then by the Mandi Samiti, no question of payment
would arise as also of withholding the gate passes. If prima facie
evidence led by the trader is not accepted by the Mandi Samiti, the
trader or the dealer can be compelled to pay the market fee as
demanded before issuance of gate pass. If the trader makes the
payment without demur, the matter ends and the assessment
finalized. But in case he does so and raises protest, then the
assessment shall be taken to be provisional in nature making it
obligatory on the trader to pay the fee before obtaining the
requisite gate pass. After protest has been lodged and the
provisional assessment has been made, a time frame would be needed
to devise making the final assessment. We, therefore, conceive
that it innately be read in the order of this Court that a final
assessment has to be made within a period of two months after
provisional assessment so that the entire transaction in that
respect is over enabling the aggrieved party, if any, to challenge
the final assessment in the manner provided under the afore Act or
under the general law of the land in appropriate fora. Having
added this concept in this manner in the two Judge Bench decision
of this Court, we declare that what repair has been done instantly
would add to the order of the High Court and the instant corrective
decision shall be the governing rule. The Civil Appeals would thus
stand disposed of.

Since the assessment thus far made against the traders, who are
involved in the instant appeals, would have to be treated as
provisional awaiting final assessment, we permit the concerned
traders to move the respective Mandi Samiti within two months from
today to hear their objections and proceedings onwards be regulated
in accordance with procedure devised hereinbefore. Nonetheless we
add that should the basis of provisional assessment be knocked off,
the Samiti would refund the market fee to the traders/dealers
within two months thereafter.”

 
5. Suffice it to say that according to the above decision the dealers
could make a claim for the refund of the amount paid by them on furnishing
of proof of the fact that the goods had moved out of the mandi area without
being subjected to a transaction of sale.

6. What is important for the present is that Heinz made claims for the
refund of the amount paid by it towards market fee and furnished to the
Mandi Samiti material to support that claim. The material so produced was
then evaluated by the Mandi Samiti who came to the conclusion that the same
was not sufficient to rebut the statutory presumption that the removal of
goods from the Mandi limits was pursuant to a sale effected within such
limits. The claim for refund of the amount paid by the appellant-Heinz was
accordingly rejected by the Mandi Samiti in terms of the orders referred to
earlier.

7. Aggrieved by the order passed by the Mandi Samiti both Glaxo India
Ltd. and Heinz India Pvt. Ltd. filed revision petitions before the
Director, Mandi Parishad, invoking his jurisdiction under Section 32 read
with Section 33 of the Act as a delegate of the Mandi Parishad. By his
order dated 24th October, 1996, the Director dismissed the revision
petitions, aggrieved whereof the companies filed Writ Petitions before the
High Court of Allahabad. These Writ Petitions were eventually allowed by
the High Court in terms of an order dated 3rd April, 1997, and the matter
remitted back to the Director for a fresh consideration and disposal in
accordance with law.

8. The Director accordingly heard the revision petition afresh, re-
appraised the material relied upon by the companies in support of their
claim for refund and came to the conclusion that the claim of the companies
for refund remained unsubstantiated and the presumption arising under the
Explanation to Section 17(iii) un-rebutted. The Director observed:

 
“17…..
(3) Neither the evidences produced by Revisionist company with the
details of information of sale has been given to C & F Agent with
dates on the basis of which C & F Agent would deliver the goods to
the buyer after receipt of payment nor any instance has been
produced for giving required instructions to C & F Agent regarding
the sale of goods and nor even any evidence has been produced. In
this way, the evidence produced regarding the actual mode of sale
at the place of destination as to how and by whom it is being done,
are contradictory or are missing. Mandi Samiti gave time to
revisionist for clarifying and proving this sale process but, the
revisionist has not been able to produce clear case and desired
evidence on this subject till date.
(4) When the chain related to the sale at the place of destination in
accordance with aforesaid through stock transfer breaks then while
keeping in view the declaration given under Excise Rule 52(A)/173C,
two possibilities appear. First is that the sale agreement for
deal at the place of destination and according to marketing system
given in letter dated 4.1.95 it may be, that the Revisionist
company by itself or through its marketing staff who might be
visiting the place of destination give the delivery of goods to C &
F Agent by fixing before the arrival of goods at the place of
destination after receiving amount of money in the form of bank
draft and pay order which resulted in the sale having taken place
from the factory at Aligarh office because the direct contact of
buyer with revisionist took place at Aligarh or it took place
through the employees/officers of revisionist’s marketing
department at Aligarh and they were given the delivery on that
basis only.
xxx xxx xxx
xxx xxx xxx
19. In this way by the analysis and close consideration of said paras
16, 17 and 18 it is concluded that under the arrangement given by
Hon’ble Supreme Court in 1995 (Supp.3) S.C.C. 433 the sale taking
place in the matter of M/s Mahalaxmi Sugar Works, Revisionist’s
disputed transmitted and its sale taking place at the place of
destination by taking stock outside the mandi area in the form of
stock transfer and the concept of taking out the sale under
explanation of 17(3)(B), it has failed to prove by producing
counter valid rebuttal of concept because according to the case
went for revision on stock transfer and place of destination it has
failed to tell the presence by producing the best chain of evidence
for proving….”

 

 

9. Writ Petition Nos. 2320(M/S), 2516(M/S), 2517(M/S), 2518(M/S),
2519(M/S), 250(M/S), 226(M/S) and 2527(M/S) of 1997 filed by Glaxo India
Ltd., before the High Court of Allahabad challenged the correctness of the
above order. Heinz India Pvt. Ltd. also filed Writ Petition Nos. 2323(M/S),
2321(M/S), 2322(M/S), 2324(M/S), 2325(M/S), 2326(M/S), 2474(M/S),
2475(M/S), 2476(M/S), 2477(M/S) and 2478(M/S) of 1997 before the High Court
challenging the same order. The High Court, however, concurred with the
view taken by the Mandi Samiti and the Director of the Parishad and
dismissed the writ petitions by its order dated 20th August, 2004. The High
Court held that the material produced by the companies did not make out a
case for refund for it did not rebut the presumption that ghee produced in
the company’s unit at Aligarh was not sold from Aligarh or that the stocks
of ghee had been transferred outside the Mandi limit on consignment basis.
The High Court gave several reasons for holding that the material produced
by the companies in support of their claim that the so called sales were in
fact stock transfer was either not reliable or was deficient. High Court
also held that the companies had withheld the best evidence available to
them without offering any explanation for doing so. The High Court said:

“The long and short of the discussions made above is that the
petitioners have miserably failed to rebut the presumption of sale
in the market area at Aligarh and therefore, the Director and the
assessing authorities rightly levied the Mandi fee on the
consignments of Ghee transported by Glaxo and its successor Heinz
India Private Limited to other States. The judgments passed by the
Revisional Authority are not perverse so as to be interfered with
by this Court; rather all the questioned judgments are well
discussed and reasoned. In the result, the petitioners are not
entitled to claim any relief.”

 
10. The present appeals assail the above order as already mentioned.

11. We have heard the learned counsels of the parties at considerable
length. Three questions fall for our determination. These are:

1. Whether the Krishi Utpadan Mandi Adhiniyam does not contain the
necessary machinery provisions for assessment of the fees and for
adjudication of disputes in relation thereto? If so to what effect?

2. What precisely is the correct legal standard/test for determining
whether or not the presumption arising under the Explanation to
Section 17(iii) of the Act has been rebutted?

And

3. Whether the orders passed by the Mandi Utpadan Samiti and that passed
by the Director, as delegate of the Mandi Parishad, suffer from any
legal infirmity to call for interference?

Re: Question No.1

12. This Court has in a long line of decisions rendered from time to
time, emphasised the importance of machinery provisions for assessment of
taxes and fees recoverable under a taxing statute. In one of the earlier
decisions on the subject a Constitution Bench of this Court in Kunnathat
Thathunni Moopil Nair etc., v. State of Kerala and Anr. (AIR 1961 SC 552)
examined the constitutional validity of the Travancore-Cochin Land Tax Act
(15 of 1955). While recognising what is now well-settled principle of law
that taxing statute is not wholly immune from attack on the ground that it
infringes the equality clause in Article 14, this Court found that the
enactment in question was violative of Article 14 of the Constitution for
inequality was writ large on the Act and inherent in the very provisions
under the taxing section thereof. Having said so, this Court also noticed
that the Act was silent as to the machinery and the procedure to be
followed in making the assessment. It was left to the Executive to evolve
the requisite machinery and procedure thereby making the whole thing from
beginning to end purely administrative in character completely ignoring the
legal position that the assessment of a tax on person or property is a
quasi-judicial exercise. Speaking for the majority Sinha, C.J. said:

“Ordinarily, a taxing statute lays down a regular machinery for
making assessment of the tax proposed to be imposed by the statute.
It lays down detailed procedure as to notice to the proposed
assessee to make a return in respect of property proposed to be
taxed, prescribes the authority and the procedure for hearing any
objections to the liability for taxation or as to the extent of the
tax proposed to be levied, and finally, as to the right to
challenge the regularity of assessment made, by recourse to
proceedings in a higher Civil Court. The Act merely declares the
competence of the Government to make a provisional assessment, and
by virtue of s. 3 of the Madras Revenue Recovery Act, 1864, the
land-holders may be liable to pay the tax. The Act being silent as
to the machinery and procedure to be followed in making the
assessment leaves it to the Executive to evolve the requisite
machinery and procedure. The whole thing, from beginning to end, is
treated as of a purely administrative character, completely
ignoring the legal position that the assessment of a tax on person
or property is at least of a quasi-judicial character.”

(emphasis supplied)

 
13. In Rai Ramkrishna and Ors. etc. v. State of Bihar (AIR 1963 SC 1667)
this Court was examining the constitutional validity of the Bihar Taxation
on Passengers and Goods (Carried by Public Service Motor Vehicles) Act,
1961. Reiterating the view taken in Kunnathat Thathunni Moopil Nair (supra)
this Court held that a statute is not beyond the pale of limitations
prescribed by Articles 14 and 19 of the Constitution and that the test of
reasonableness prescribed by Article 304(b) is justiciable. However, in
cases where the statute was completely discriminatory or provides no
procedural machinery for assessment and levy of tax or where it was
confiscatory, the Court would be justified in striking it down as
unconstitutional. In such cases the character of the material provisions of
the impugned statute may be such as may justify the Court taking the view
that in substance the taxing statue is a cloak adopted by the legislature
for achieving its confiscatory purpose.

14. In Raja Jagannath Baksh Singh v. State of Uttar Pradesh and Anr. (AIR
1962 SC 1563) this Court was examining the constitutional validity of U.P.
Large Land Holdings Tax Act (31 of 1957). Dealing with the argument that
the Act did not make a specific provision about the machinery for
assessment or recovery of tax, this Court held:

“….if a taxing statute makes no specific provision about the
machinery to recover tax and the procedure to make the assessment
of the tax and leaves it entirely to the executive to devise such
machinery as it thinks fit and to prescribe such procedure as
appears to it to be fair, an occasion may arise for the Courts to
consider whether the failure to provide for a machinery and to
prescribe a procedure does not tend to make the imposition of the
tax an unreasonable restriction within the meaning of Article
19(5). An imposition of tax which in the absence of a prescribed
machinery and the prescribed procedure would partake of the
character of a purely administrative affair can, in a proper sense,
be challenge as contravening Article 19(1)(f).”

(emphasis supplied)

 
15. In The State of Andhra Pradesh and Anr. v. Nalla Raja Reddy and Ors.
(AIR 1967 SC 1458), this Court was examining the constitutional validity of
Andhra Pradesh Land Revenue (Additional Assessment) and Cess Revision Act
(22 of 1962) as amended by Amendment Act (23 of 1962). Noticing the absence
of machinery provisions in the impugned enactments this Court observed:

“…if S.6 is put aside, there is absolutely no provision in the
Act prescribing the mode of assessment. Section 3 and 4 are
charging sections and they say in effect that a person will have to
pay an additional assessment per acre in respect of both dry and
wet lands. They do not lay down how the assessment should be
levied. No notice has been prescribed; no opportunity is given to
the person to question the assessment on his land. There is no
procedure for him to agitate the correctness of the classification
made by placing his land in a particular class with reference to
ayacut, acreage or even taram. The Act does not even nominate the
appropriate officer to make the assessment to deal with questions
arising in respect of assessments and does not prescribe the
procedure for assessment. The whole thing is left in a nebulous
form. Briefly stated, under the Act there is no procedure for
assessment and however grievous the blunder made there is no way
for the aggrieved party to get it corrected. This is a typical case
where a taxing statute does not provide any machinery of
assessment.”

(emphasis supplied)

 

16. The appeals filed by the State against the judgment of the High Court
striking down the enactment were on the above basis dismissed.

17. Reference may also be made to M/s Vishnu Dayal Mahendra Pal and Ors.
v. State of Uttar Pradesh and Ors. (1974) 2 SCC 306, and D.G. Gose and Co.
(Agents) Pvt. Ltd. v. State of Kerala and Anr. (1980) 2 SCC 410, where this
Court held that sufficient guidance were available from the preamble and
other provisions of the Act. The members of the committee owe a duty to be
conversant with the same and discharge their functions in accordance with
the provisions of the Act and the Rules and that in cases where the
machinery for determining annual value has been provided in the Act and the
Rules of the local authority, there is no reason or necessity of providing
same or similar provisions in the other Act or Rules.

18. There is no gainsaying that a total absence of machinery provisions
for assessment/recovery of the tax levied under an enactment, which has the
effect of making the entire process of assessment and recovery of tax and
adjudication of disputes relating thereto administrative in character, is
open to challenge before a Writ Court in appropriate proceedings. Whether
or not the enactment levying the tax makes a machinery provision either by
itself or in terms of the Rules that may be framed under it is, however, a
matter that would have to be examined in each case. In our opinion, it is
not necessary to dilate any further on this aspect in the context of the
provisions of Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964 having
regard to the fact that the question whether the said Act provides a
suitable machinery for assessment and recovery of the fee has been examined
by this Court in Ram Chandra Kailash Kumar & Co. & Ors. v. State of U.P. &
Anr. 1980 (Supp) SCC 27. That decision arose out of a writ petition filed
before the High Court of Allahabad challenging the constitutional validity
of the Adhiniyam. The High Court had dismissed the challenge to the
constitutional validity of the enactment which order was then assailed
before this Court in an appeal by special leave. This Court formulated as
many as 24 distinct points for determination based on the grounds that were
urged in support of the challenge. One of the points that fell for
consideration was whether the rules framed under the Act provide for any
machinery for adjudication of disputes in addition to the factum and
quantum of liability arising as under the Act. The contention precisely was
that neither the Act nor the rules made any provision for adjudication of
disputes that would arise on both these aspects. While rejecting the
submission on behalf of the Marketing Committee that no such disputes
actually exist or are likely to exist which would require any machinery of
the Market Committee for adjudication, this Court observed:

“xxxxxxx A machinery for adjudication of dispute is necessary to be
provided under the rules for proper functioning of the market
committees. We have already observed and expressed our hope for
bringing into existence such machinery in one form or the other.
But it is not correct to say that in absence of such a machinery no
market fee can be levied or collected. If a dispute arises then in
the first instance the market committee itself or any sub-committee
appointed by it can give its finding which will be subjected to
challenge in any Court of law when steps are taken for enforcement
of the provisions for realisation of the market fee.”

 
19. It is evident from the above that this Court had specifically
rejected the contention that in the absence of any machinery under the Act
and the Rules no market fee could be levied or collected. That being so,
it not necessary for us to either re-examine that aspect or to take a
contrary view contrary at this stage.

20. Mr. Sudhir Chandra, learned senior counsel appearing for the
appellant-company, however, contended that the hope expressed by this Court
that a comprehensive machinery provision shall be made for adjudication of
disputes has been belied by the inaction of the respondents for over 30
years which calls for suitable directions and/or guidelines to the State as
also to the authorities under the Act to make necessary machinery
provisions especially when serious disputes involving substantial sums of
money towards market fee are arising for adjudication without there being a
semblance of an adjudicatory mechanism or judicial approach in the matter
of adjudication of such disputes. Elaborating his submissions Mr. Chandra
contended that while the Market Committee examines the question of refund
of the fee paid by the seller of any produce, any dispute touching the
correctness of any such adjudication or assessment by the committee is
examinable by the Board in terms of Section 32 of the Act. Since the Board
is a multi-member body any exercise in the nature of review or revision of
the order passed by the Committee on the claim for refund cannot be
undertaken by the Board itself, the practice that is followed is that such
revisions are heard and decided by the Director to whom the revisional
powers of the Board are delegated in terms of Section 33 of the Act. What
according to Mr. Chandra is surprising is that even the Director does not
hear the matters himself. The actual disposal of the revision is left to a
junior officer to whom the Director may assign the case for disposal.
Hearing by any such junior officer who is neither by training nor by
qualification suited for such determination of complicated issues regarding
the liability of the purchaser or seller of goods within a market area
makes the entire process of determination farcical. A machinery for
adjudication of disputes can be said to have been provided for only if the
same ensures a fair and objective adjudication of the matters in disputes
at the hands of the authority who is either by reasons of his training,
experience or qualification fit to determine the controversy. So long as
such a provision is absent in the scheme of the Act, the requirement of
machinery for adjudication of disputes must be deemed to be absent, argued
Mr. Chandra.

21. Section 32 of the Act empowers the Board to call for and examine the
proceedings of the Committee for the purpose of satisfying itself as to the
legality or propriety of any decision or order passed by a Committee and to
pass such orders thereon as it may deem fit including an order modifying,
annulling or reversing any such decision or order of the Committee. Dealers
aggrieved of an order of assessment or an order declining refund of the fee
paid by them are entitled to question the correctness of any such demand in
terms of the said provision which is in the nature of a revisional power
vested in the Board. It is common ground that the dealers in the present
case had invoked the said power of the Board under Section 32. It is also
common ground that the revisions so filed have been entertained and dealt
with on merits. What is unsatisfactory according to the dealers is the fact
that the revisions have been dealt with by an officer authorised by the
Director. Mr. Chandra did not dispute the proposition that the power
vested in the Board including that under Section 32 of the Act could be
exercised by the Director as a delegate of the Board keeping in view the
provisions of Section 33 of the Act which permits such delegation. Sections
32 and 33 read as under:

“32. Powers of the [Board] to call for the proceedings of a
Committee and pass orders thereon. – The [Board] may, for the
purpose of satisfying itself as to the legality or propriety of any
decision of, or order passed by, a Committee, at any time call and
examine the proceedings of the Committee, and, where it is of the
opinion that the decision or order of the Committee should be
modified, annulled or reversed, pass such orders thereon as it may
deem fit.

33. Delegation of powers. – The Board may, by regulations,
delegate subject to such conditions and restrictions and in such
manner, as may be specified therein, any of its powers to the
Director.”

 
22. What, according to the learned counsel for the appellants, was
unacceptable is the fact that the revisions could be heard and disposed of
even by an officer authorised by the Director. This, argued Mr. Chandra,
resulted in dilution of the sanctity and efficacy of the revisional
exercise not because it was dehors the statute but because the exercise of
quasi-judicial powers were entrusted to an officer at the lower rung of the
hierarchy.

23. Section 2(h) defines the term ‘Director’ as under:

“‘Director’ means an officer appointed by the State Government as
Director of Mandis and includes any other officer authorised by the
Director to perform all or any of his functions under this Act.”

 

24. It is manifest from a plain reading of the above that the expression
‘Director’ wherever used in the Act including Section 33 thereof includes
an officer authorised by the Director to perform all or any of his
functions under the Act. Significantly enough neither before the High Court
nor before us was it contended that the officer who had handled and
disposed of the revision petitions filed by the dealers, was not duly
authorised in terms of Section 2(h) or that the power of the Board under
Section 32 of the Act was not duly delegated to the Director. It is not,
therefore, a case of inherent lack of jurisdiction. All that the appellants
propose is that the revisions could either be heard by the Board itself or
made over for disposal to a Committee of officers senior enough to decide
issues of fact and law involving substantial financial stakes of the
parties. Now it is true that the stakes involved in the present batch of
cases are substantial and those called upon to satisfy the demands raised
against them would like their cases to be heard by a senior officer or a
Committee of officers to be nominated by the Board. But in the absence of
any data as to the number of cases that arise for consideration involving a
challenge to the demands raised by the Market Committee and the nature of
the disputes that generally fall for determination in such cases, it will
not be possible for this Court to step in and direct an alteration in the
mechanism that is currently in place. The power to decide the revisions
vests with the Board who also enjoys the power to delegate that function to
the Director. So long as there is statutory sanction for the Director to
exercise the revisional power vested in the Board, any argument that such a
delegation is either impermissible or does not serve the purpose of
providing a suitable machinery for adjudication of the disputes shall have
to be rejected. It is noteworthy that Rule 133-A of the Rules framed under
the Act regulates the filing and disposal of the revision petitions under
Section 32 thereof. This provision was inserted with effect from 11th May,
2008 and empowers the Board either to decide the revision petition itself
or to nominate an officer for doing so. It also provides for grant of an
opportunity of being heard to the person concerned and a time bound
disposal of the revision. Rule 133-A is, therefore, a step in the direction
of providing a machinery under the Act for adjudication of disputes that
may arise between dealers on the one hand and the market committee on the
other. That being so, the Act is not completely bereft of a machinery nor
can it be said that the observations made by this Court in Ram Chandra
Kailash Kumar’s case (supra) have gone unheeded. All that we need to add is
that in order to make the Board’s revisional power more effective and its
exercise more transparent and credible, the Board would do well to delegate
the power of hearing and disposal of the revision petitions to a senior and
experienced officer who is well-versed in dealing with legal issues
concerning assessment and/or determination of the liability under the Act.
Beyond that it is neither necessary nor proper for us to say anything.
Question No.1 is answered accordingly.

Re: Question No.2

25. Explanation to Section 17(iii) of the Act raises a presumption to the
effect that any specified agricultural produce taken out of or proposed to
be taken out of a market area by or on behalf of a licensed trader has been
sold within such area; the price of the produce so presumed to be sold is
then determinable in the manner prescribed. The Explanation reads:

Explanation.- For the purpose of clause (iii), unless the contrary
is proved, any specified agricultural produce taken out or proposed
to be taken out of a market area by or on behalf of a licensed
trader shall be presumed to have been sold within such area and in
such case, the price of such produce presumed to be sold shall be
deemed to be such reasonable price as may be ascertained in the
manner prescribed.”

 

26. It is fairly evident that the presumption is rebuttable in nature;
for it holds good only till the contrary is not proved by the dealer. The
question is what is the standard of proof required to rebut the statutory
presumption; and whether the Market Committee, the Director or the High
Court applied the correct legal standard for holding that the presumption
was not effectively rebutted.

27. Relying upon the decision of this Court in Sodhi Transport Co. & Ors.
v. State of U.P. & Ors. (1986) 2 SCC 486, Mr. Sudhir Chandra contended that
the standard of proof applicable was that applied in civil actions which
are decided on the preponderance of probability and not the higher standard
of “proof beyond reasonable doubt” applied in criminal cases. The
appellants had according to the learned counsel discharged the burden of
rebutting the presumption by adducing evidence which tended to show that
the ghee manufactured by them had not been sold within the market area to
attract the levy of market fee on the price thereof. He urged that the
produce had been removed out of the market area on transfer of stock basis
without any element of sale in such transfers. Reliance was in support
placed by Mr. Chandra upon an agreement which Heinz had executed with its
Clearing and Forwarding (C&F) Agent in the State of Rajasthan apart from
other material adduced before the Market Committee, in a bid to prove that
the stocks in question had not been sold within the market area.

28. Appearing for the Market Committee Mr. Rakesh Dwivedi argued that the
mere production of some evidence howsoever feeble was not enough to rebut
the presumption which would continue to hold the field till such time the
trader adduced evidence to prove the contrary. It was only “proof to the
contrary” that could rebut the presumption and for doing so just any
material or evidence was not enough. It must, argued Mr. Dwivedi, be
evidence that would clearly establish that there was indeed no sale
effected within the market area as presumed in terms of the Explanation.
The appellant-companies had failed to do so as before the Market Committee
and the Director and even before the High Court.

29. Black’s Law Dictionary 5th Edition, 1979, defines ‘Presumption’ as
under:
“A presumption is a rule of law, statutory or judicial, by
which finding of a basic fact gives rise to existence of presumed
fact, until presumption is rebutted.”

 

30. The same dictionary defines ‘Rebut’ as under:
“In pleading and evidence, to defeat, refute, or take away the
effect of something. When a plaintiff in an action produces
evidence which raises a presumption of the defendant’s liability,
and the defendant adduces evidence which shows that the presumption
is ill-founded, he is said to “rebut it.”

 

31. Both in England and America, law permits raising of presumptions both
conclusive and rebuttable. There is considerable judicial authority in both
jurisprudential systems, dealing with the question of the standard of proof
required to rebut a presumption whether statutory or at common law. In
England, the civil standard of proof is defined by Lord Denning in Miller
v. Minister of Pensions [1947] 2 All ER 372, thus:

“……….It need not reach certainty, but it must carry a high
degree of probability. Proof beyond reasonable doubt does not mean
proof beyond the shadow of doubt. The law would fail to protect the
community if it admitted fanciful possibilities to deflect the
course of justice. If the evidence is so strong against a man as to
leave only a remote possibility in his favour which can be
dismissed with the sentence “of course it is possible, but not in
the least probable” the case is proved beyond reasonable doubt, but
nothing short of that will suffice.”

 

 

32. Three years later came Bater v. Bater [1950] 2 All ER 458, in which
the civil standard of proof to an extent modified, was seen by some jurists
as somewhat confusing the concept so clearly stated in Miller’s case
(supra). In Bater (supra) the Court declared that neither civil nor
criminal standard of proof was an absolute standard. A ‘civil case’ may be
proved by a preponderance of probability, explained, Denning J.,
“……but there may be degrees of probability within that
standard. The degree depends on the subject-matter. A civil court,
when considering a charge of fraud, will naturally require a higher
degree of probability than that which it would require if
considering whether negligence were established. It does not adopt
so high a degree as a criminal court, even when it is considering a
charge of a criminal nature, but still it does require a the degree
of probability required should be commensurate with the occasion.”

 

 

33. Then came Hornal v. Neuberger Products Ltd. [1957] 1 Q.B. 247, where
the Court held that in a civil action where fraud or other matter which is
or may be a crime is alleged against a party or against persons not parties
to the action, the standard of proof to be applied is that applicable in
civil actions generally, namely, proof on the balance of probability, and
not the higher standard of proof beyond all reasonable doubt required in
criminal matters; but there is no absolute standard of proof, and no great
gulf between proof in criminal and civil matters; for in all cases the
degree of probability must be commensurate with the occasion and
proportionate to the subject-matter. The elements of gravity of an issue
are part of the range of circumstances which have to be weighed when
deciding as to the balance of probabilities. The law in England, therefore,
is that degree of probability must be commensurate with the subject-matter.
This implies that graver the charge in a civil action, higher the degree of
proof required. A civil case may be proved by preponderance of probability,
but the degree of probability would depend upon the nature of the subject-
matter.

34. In the American system of justice, the Courts have adopted a somewhat
different approach, though the essence, may appear to be the same as is
accepted by the Courts in England. In America, standard of proof depends
upon the degree of confidence which the American society thinks the fact
finder should have in the correctness of factual conclusions for a
particular type of adjudication. [See Addington v. Texas, 441 U.S. 418, 423
(1979)]. Proof may be required by a preponderance of the evidence, by clear
and convincing evidence or by proof that is beyond reasonable doubt. Proof
by ‘clear and convincing evidence’ lies between standard of ‘preponderance
of the evidence’ at one end and ‘beyond a reasonable doubt’ at the other.
Clear and convincing evidence has been described as evidence that produces
in the mind of the trier of the fact an abiding conviction that the truth
of the factual contentions is highly probable. [See 32A Corpus Juris
Secundum Evidence ‘ 1624].

35. We may at this stage refer to a few decisions of this Court on the
subject. In Izhar Ahmad Khan v. Union of India and Ors. (AIR 1962 SC 1052),
this Court was examining the provisions of Schedule III Rule 3 of the
Citizenship Rules, 1956 which made it obligatory on the enquiring authority
to infer the acquisition of citizenship of a foreign country from the fact
that the passport of foreign country has been obtained by an Indian
citizen. The question was whether a rule about irrebuttable presumption is
a rule of evidence or not. The question had arisen in the context of rule-
making power of the Central Government under Section 9(2) of the
Citizenship Act, 1955 according to which the Central Government could
prescribe rules of evidence subject to which the competent authority could
hold an inquiry. The contention urged was that instead of prescribing a
rule of evidence the Central Government had by enacting Rule 3 and raising
a conclusive presumption regarding the acquisition of citizenship of
another country, framed a rule of substantive law and not a rule of
evidence.

36. This Court held that while answering any such question it is not
correct to assume that all rules prescribing irrebuttable presumption are
rules of substantive law. Any such question, declared this Court, has to
be answered after examining the rule and its impact on the proof of the
fact in issue. Explaining the juristic basis of a rebuttable presumption
and the approach to be adopted in applying such presumptions to different
situations this Court observed:

“25. It is conceded, and we think, rightly, that a rule prescribing
a rebuttable presumption is a rule of evidence. It is necessary to
analyse what the rule about the rebuttable presumption really
means. A fact A which has relevance in the proof of fact B and
inherently has some degree of probative or persuasive value in that
behalf may be weighed by a judicial mind after it is proved and
before a conclusion is reached as to whether fact B is proved or
not. When the law of evidence makes a rule providing for a
rebuttable presumption that on proof of fact A, fact B shall be
deemed to be proved unless the contrary is established, what the
rule purports to do is to regulate the judicial process of
appreciating evidence and to provide that the said appreciation
will draw the inference from the proof of fact A that fact B has
also been proved unless the contrary is established. In other
words, the rule takes away judicial discretion either to attach the
due probative value to fact A or not and requires prima facie the
due probative value to be attached in the matter of the inference
as to the existence of fact B, subject, of course, to the said
presumption being rebutted by proof to the contrary.
xxx xxx xxx
xxx xxx xxx
Thus, the rule of rebuttable presumption adds statutory force to
the natural and inherent probative value of fact A in relation to
the proof of the existence of fact B and in adding his statutory
value to the probative force of fact A, the rule, it is conceded,
makes a provision within the scope and function of the law of
evidence. If that is so, how does it make a difference in principle
if the rule adds conclusive strength to the probative value of the
said fact A in relation to the proof of the existence of fact B? In
regard to the category of facts in respect of which an irrebuttable
presumption is prescribed by a rule of evidence, the position is
that the inherent probative value of fact A in that behalf is very
great and it is very likely that when it is proved in a judicial
proceeding, the judicial mind would normally attach great
importance to it in relation to the proof of fact B. The rule steps
in with regard to such facts and provides that the judicial mind
should attach to the said fact conclusiveness in the matter of its
probative value. It would be noticed that as in the case of a
rebuttable presumption, so in the case of an irrebuttable
presumption, the rule purports to assist the judicial mind in
appreciating the existence of facts. In one case the probative
value is statutorily strengthened but yet left open to rebuttal, in
the other case, it is statutorily strengthened and placed beyond
the pale of rebuttal. Considered from this point of view, it seems
rather difficult to accept the theory that whereas a rebuttable
presumption is within the domain of the law of evidence,
irrebuttable presumption is outside the domain of that law and
forms part of the substantive law.”

 

 
37. In Harbhajan Singh v. State of Punjab & Anr. (AIR 1966 SC 97), this
Court was examining the nature and scope of onus of proof which an accused
person had to discharge in seeking protection of the Exception 9 to Section
499 IPC. This Court held that onus to prove its case lies on the
prosecution no matter what the charge or where the trial is held. The
principle that prosecution must prove the guilt of the prisoner is part of
the common law of England and also part of the criminal law of this
country. Having said so, the Court further declared that if an exception is
taken by an accused person he is not required to justify his plea beyond a
reasonable doubt and that the degree and character of proof which he is
expected to furnish in support of his plea cannot be equated with the
degree and character of proof that is expected of the prosecution. This
Court with approval quoted the English decision in R. v. Clark (1921 61 SCR
608), which was approved by Lord Hailsham in Sodeman v. R [1936] 2 All ER
1138 to the following effect:
“………….the necessity for excluding doubt contained in the
rule as to the onus upon the prosecution in criminal cases might be
regarded as an exception founded upon considerations of public
policy. There can be no consideration of public policy calling for
similar stringency in the case of an accused person endeavouring to
displace a rebuttable presumption.”

 
38. We may also refer to the decision of this Court in Sodhi Transport
Co. (supra) upon which heavy reliance was placed by learned counsel for the
appellant in support of the plea that the standard of proof required of the
person against whom statutory presumption is raised is a simple
preponderance of probability and no more. In Sodhi Transport Co. (supra)
this Court was examining the provisions of Section 28-B of Uttar Pradesh
Sales Tax Act, 1948 which was alleged to be ultra vires of the Constitution
inasmuch as it permitted the authorities to raise a rebuttable presumption
regarding the sale of goods having taken place inside the State of U.P. if
the transit pass is not handed over to an officer at the check-post or the
barrier near the place of exit from the State. Such a presumption with an
object of preventing evasion of tax, it was contended, as regards the proof
of a set of circumstances which would make a transaction liable to tax was
tantamount to conferring on the authority concerned the power to levy a tax
which the legislature could not otherwise levy. Repelling the contention
this Court held that a rebuttable presumption has the effect of shifting
the burden of proof, for the authority concerned, before levying sales tax
arrives at the conclusion about the exigibility of the tax by a judicial
process and only upon his satisfaction that the goods have been sold inside
the State. In doing so, the authority no doubt relies upon the statutory
rules and presumption contained in Section 28-B of the Act. But such
presumption can be rebutted by the person against whom action is taken
under Section 28-B when the person concerned has the opportunity to
displace the presumption by leading evidence. That being so, provision of
Section 28-B inasmuch as the same raises a rebuttable presumption did not
suffer from any vice of unconstitutionality. This Court observed:

“14. A presumption is not in itself evidence but only makes a prima
facie case for party in whose favour it exists. It is a rule
concerning evidence. It indicates the person on whom the burden of
proof lies. When presumption is conclusive, it obviates the
production of any other evidence to dislodge the conclusion to be
drawn on proof of certain facts. But when it is rebuttable it only
points out the party on whom lies the duty of going forward with
evidence on the fact presumed, and when that party has produced
evidence fairly and reasonably tending to show that the real fact
is not as presumed the purpose of presumption is over. Then the
evidence will determine the true nature of the fact to be
established. The rules of presumption are deduced from enlightened
human knowledge and experience and are drawn from the connection,
relation and coincidence of facts, and circumstances.”

 
39. Mr. Chandra, however, laid considerable emphasis on the words
“tending to show that the real fact is not as presumed”, to argue that the
test applied by this Court in rebuttable presumptions had been the test of
‘preponderance of probability’. We do not think so. It is well-settled
that a decision is an authority for the point it decides. It is equally
well-settled that the text of the decision cannot be read as if it were a
statute. That apart the expression used by this Court is “evidence fairly
and reasonably tending to show”, which signifies that it is not just any
evidence, howsoever shaky and nebulous that would satisfy the test of
preponderance of probability to rebut the statutory presumption but
evidence that can by proper and judicial application of mind be said to be
fairly and reasonably showing that the real fact is not as presumed. In
other words the evidence required to rebut a statutory presumption ought to
be clear and convincing, no matter the degree of proof may not be as high
as proving the fact to the contrary beyond a reasonable doubt. The
heightened standard of proof required to rebut a presumption raised under
the statute at hand is in our view applicable for two distinct reasons.
The first and foremost is that the presumption is raised in relation to a
fiscal statute. While the amount payable is not a tax it is nevertheless a
statutory levy which is attracted the moment the transaction of sale takes
place within the market area. Goods, admittedly produced within the market
area and not consumed within such area are presumed to be leaving pursuant
to a transaction of sale unless the contrary is proved. That the goods are
produced within the market area is not in dispute in the instant case. That
they left the market area is also admitted. In the ordinary course,
therefore, the presumption would be that the goods left pursuant to a sale
unless the appellants are in a position to prove the contrary.

40. The second reason for applying a higher standard of proof than mere
preponderance of probability is that the nature of transaction pursuant to
which the goods are removed from the market area is within the exclusive
knowledge of the appellants or the persons to whom such goods are being
dispatched. In other words, the circumstances in which the transactions,
which the statute presumes to be sales, but which the appellants claim are
simple transfer of stocks are within the exclusive knowledge of the
appellants. The entire evidence relevant to the transactions, being
available only with the appellants and the true nature of the transactions
being within their special knowledge, there is no reason why the rebuttal
evidence should not satisfy the higher standard of proof and clearly and
convincingly establish that the fact presumed is not the actual fact. Our
answer to Question No.2 accordingly is that the evidence intended to rebut
the statutory presumption under Section 17 of the Adhiniyam ought to be
clear and convincing evidence showing that what is presumed under the
provision is not the real fact.

Re: Question No.3

41. The Market Committee and the Director have recorded concurrent
findings of fact to the effect that the petitioners had failed to establish
that no sale of the stocks of Ghee had taken place within the Mandi limits
at Aligarh. The statutory presumption that any transfer of stocks from
within the Mandi area, was pursuant to a sale was thus held to have
remained unrebutted. A challenge to the above finding would necessarily
raise the question as to the scope of judicial review of such findings. We
need to sail smooth over that aspect before examining the validity of the
orders within the permissible parameters of judicial review.

42. The power of judicial review is neither unqualified nor unlimited. It
has its own limitations. The scope and extent of the power that is so very
often invoked has been the subject-matter of several judicial
pronouncements within and outside the country. When one talks of ‘judicial
review’ one is instantly reminded of the classic and oft quoted passage
from Council of Civil Service Unions (CCSU) v. Minister for the Civil
Service [1984] 3 All ER 935, where Lord Diplock summed up the permissible
grounds of judicial review thus:
“Judicial Review has I think developed to a stage today when,
without reiterating any analysis of the steps by which the
development has come about, one can conveniently classify under
three heads the grounds on which administrative action is subject
to control by judicial review. The first ground I would call
‘illegality’, the second ‘irrationality’ and the third ‘procedural
impropriety’.
By ‘illegality’ as a ground for judicial review I mean that the
decision-maker must understand correctly the law that regulates his
decision-making power and must give effect to it. Whether he has or
not is par excellence a justiciable question to be decided, in the
event of dispute, by those persons, the judges, by whom the
judicial power of the State is exercisable.
By ‘irrationality’ I mean what can by now be succinctly referred to
as ‘Wednesbury unreasonableness’. It applies to a decision which is
so outrageous in its defiance of logic or of accepted moral
standards that no sensible person who had applied his mind to the
question to be decided could have arrived at it. Whether a decision
falls within this category is a question that judges by their
training and experience should be well equipped to answer or else
there would be something badly wrong with our judicial system…

I have described the third head as ‘procedural impropriety’ rather
than failure to observe basic rules of natural justice or failure
to act with procedural fairness towards the person who will be
affected by the decision. This is because susceptibility to
judicial review under this head covers also failure by an
administrative tribunal to observe procedural rules that are
expressly laid down in the legislative instrument by which its
jurisdiction is conferred, even where such failure does not involve
any denial of natural justice.”

 

 

43. The above principles have been accepted even by this Court in a long
line of decisions handed down from time to time. We may, however, refer
only to some of those decisions where the development of law on the subject
has been extensively examined and the principles applicable clearly
enunciated. In Tata Cellular v. Union of India (1994) 6 SCC 651, this
Court identified the grounds of judicial review of administrative action in
the following words :

“The duty of the court is to confine itself to the question of
legality. Its concern should be :
1. Whether a decision-making authority exceeded its powers?
2. Committed an error of law,
3. committed a breach of the rules of natural justice,
4. reached a decision which no reasonable tribunal would have
reached or,
5. abused its powers.
Therefore, it is not for the court to determine whether a
particular policy or particular decision taken in the fulfilment of
that policy is fair. It is only concerned with the manner in which
those decisions have been taken. The extent of the duty to act
fairly will vary from case to case. Shortly put, the grounds upon
which an administrative action is subject to control by judicial
review can be classified as under :
(i) Illegality : This means the decision-maker must
understand correctly the law that regulates his decision-
making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.”

 
44. Reference may also be made to the decision of this Court in State of
Punjab v. Gurdial Singh (1980) 2 SCC 471 where Krishna Iyer, J. noticed the
limitations of judicial review and declared that the power vested in the
Superior Courts ought to be exercised with great circumspection and that
interference may be permissible only where the exercise of the power seems
to have been vitiated or is otherwise void on well established grounds.
The Court observed:
“The court is handcuffed in this jurisdiction and cannot raise its
hand against what it thinks is a foolish choice. Wisdom in
administrative action is the property of the executive and judicial
circumspection keeps the court lock-jawed save where the power has
been polluted by oblique ends or is otherwise void on well-
established grounds. The constitutional balance cannot be upset.”

 
45. There is almost complete unanimity on the principle that judicial
review is not so much concerned with the decision itself as much with the
decision-making process. (See Chief Constable of North Wales Police v.
Evans [1982] 3 All ER 141). As a matter of fact, the juristic basis for
such limitation on the exercise of the power of judicial review is that
unless the restrictions on the power of the Court are observed, the Courts
may themselves under the guise of preventing abuse of power, be guilty of
usurping that power. Justice Frankfurter’s note of caution in Trop v.
Dulles 356 U.S. 86 (1958) is in this regard apposite when he said:
“All power is, in Madison’s phrase, ‘of an encroaching nature’.
Judicial power is not immune against this human weakness. It also
must be on guard against encroaching beyond its proper bounds, and
not the less so since the only restraint upon it is self-
restraint.”
46. That the Court dealing with the exercise of power of judicial review
does not substitute its judgment for that of the legislature or executive
or their agents as to matters within the province of either, and that the
Court does not supplant ‘the feel of the expert’ by its own review, is also
fairly well-settled by the decisions of this Court. In all such cases
judicial examination is confined to finding out whether the findings of
fact have a reasonable basis on evidence and whether such findings are
consistent with the laws of the land. [See Union of India v. S.B. Vohra,
(2004) 2 SCC 150, Shri Sitaram Sugar Co. Ltd. v. Union of India, (1990) 3
SCC 223, and Thansingh Nathmal and Ors. v. Supdt. of Taxes and Ors.,
Dhubri, AIR 1964 SC 1419].

47. In Dharangadhra Chemical Works Ltd. v. State of Saurashtra and Ors.,
AIR 1957 SC 264, this Court held that decision of a Tribunal on a
question of fact which it has jurisdiction to determine is not liable to be
questioned in proceedings under Article 226 of the Constitution unless it
is shown to be totally unsupported by any evidence.
48. To the same effect is the view taken by this Court in Thansingh
Nathmal’s case (supra) where this Court held that the High Court does not
generally determine questions which require an elaborate examination of
evidence to establish the right to enforce which the writ is claimed.

49. We may while parting with the discussion on the legal dimensions of
judicial review refer to the following passage from Reid v. Secretary of
State for Scotland [1999] 1 All ER 481, which succinctly sums up the legal
proposition that judicial review does not allow the Court of review to
examine the evidence with a view to forming its own opinion about the
substantial merits of the case.
“Judicial review involves a challenge to the legal validity of
the decision. It does not allow the court of review to examine the
evidence with a view to forming its own view about the substantial
merits of the case. It may be that the tribunal whose decision is
being challenged has done something which it had no lawful
authority to do. It may have abused or misused the authority which
it had. It may have departed from the procedures which either by
statute or at common law as a matter of fairness it ought to have
observed. As regards the decisions itself it may be found to be
perverse or irrational or grossly disproportionate to what was
required. Or the decision may be found to be erroneous in respect
of a legal deficiency, as for example, through the absence of
evidence, or of sufficient evidence, to support it, or through
account being taken of irrelevant matter, or through a failure for
any reason to take account of a relevant matter, or through some
misconstruction of the terms of the statutory provision which the
decision maker is required to apply. But while the evidence may
have to be explored in order to see if the decision is vitiated by
such legal deficiencies it is perfectly clear that in case of
review, as distinct from an ordinary appeal, the court may not set
about forming its own preferred view of evidence.”

 

 

50. In its order dated 13th September, 1995 the Mandi Samiti, Aligarh,
has upon examination of the evidence adduced before it recorded a finding
that the same did not inspire confidence for a variety of reasons. The
Samiti has found that the appellants had failed to produce any evidence as
to when and where any transaction regarding sale and purchase of ghee
manufactured within Mandi area was finalised. No evidence was adduced by
the appellants to show as to who had been instrumental in finalising such
sale transactions out of its officers and employees. If the product was
being sold under the directions of the officers of the Company it should
have been possible for the company to firmly establish the identity of such
officers and furnish details as to when and where the sale transaction of
different stocks of ghee sent out from the market area was finalised. The
Samiti was of the view that although the appellant had claimed that there
were separate C&F agreements with various agents appointed by it at several
destinations outside the mandi area the appellant had produced only two of
such agreements in support of its case that such C&F agents existed at all
such destinations. The Mandi Samiti noticed that 25 consignments relevant
to the order passed by the Samiti on 13th September, 1995 were sent out of
the Mandi area but the appellant-company had not adduced evidence
pertaining to all such consignments. Even in regard to consignments where
such evidence had been adduced the Samiti noticed shortcomings that
adversely affected the credibility of the evidence. For instance, there
were no Book Numbers on the sales invoice-cum-challans relied upon by the
company. The evidence was in the form of loose papers, hence not reliable.
It was noticed that although payments were mentioned on the documents
submitted, no particulars as to who made the payment and to whom, were
available. The Samiti also noticed that signatures of the vendor of the
goods on the sale invoice-cum-challan were absent. It was, therefore, not
clear whether the person making the sale was an individual from the company
or one representing the C&F agent. The Samiti found information furnished
by the appellant incomplete and discrepant in regard to the sales made in
Jodhpur, Jaipur and Indore. The Samiti on the basis of the above
observations took the view that the so called C&F agents were the actual
purchasers of the ghee from the company and the C&F agreements, two of
which were placed on record, were only meant to avoid payment of market
fee.
51. In its order dated 3rd July, 1997 the Mandi Parishad which heard the
revision against the above order of the Mandi Samiti did not find any error
in the appreciation of the evidence per se to warrant a different view. It
took the view that no evidence was produced to show as to why a particular
quantity of ghee was to be delivered to a particular place. The transport
biltis did not mention as to who shall pay the freight for the
transportation of the ghee. This is because if the transport of ghee
outside Aligarh, was a stock transfer and not pursuant to a sale made
within the market area, the payment of freight would have been the
responsibility of the company for there is no transfer of the ownership in
that case to any third party. The company should have in that case firmly
established that the transport charges payable in regard to the transport
of the stocks of ghee out of the mandi area were paid by it and by no one
else. Keeping in view the fact that the company is doing business worth
crores of rupees and maintains regular accounts book, both in the ordinary
course of its business as also for tax purposes, there was no reason why
the company should have failed to establish that the transport charges were
paid by it. The Director exercising powers of the Mandi Parishad also held
that there was a break in the chain of reasons in as much as the appellants
did not bring forth the link evidence giving details of the sale
transactions pursuant to which C&F agents had made the delivery of the
goods.
52. The orders passed by the Mandi Samiti and the Director exercising
powers of the Mandi Parishad thus clearly show that there was no clear and
convincing evidence to establish that the presumption arising under Section
17(iii) of the Act stood rebutted and that the actual was not, what was
presumed under the said provision.
53. To the same effect are the findings recorded by the Mandi Samiti in
its order dated 7th July, 1998 with minor variations here and there. The
Mandi Samiti, inter alia, noticed that while some of the transport
consignment note showed that the same would be billed at Bombay, some
others showed that they would be billed at Aligarh. The amount of freight
was also not mentioned nor details regarding the payment of these
consignments notes produced. It was not established whether the payment was
to be made by the appellants or the recipients of the goods. Hence, the
same were insufficient to prove that no sale had taken place inside the
mandi area.
54. There was also no evidence to prove that the rent of godown was being
paid by the appellant-company nor was there any evidence to show the
procedure followed for the sale of the products at Indore and Jaipur.
Twenty one of the invoices made for Jaipur had no signature of the
recipient of the goods nor it was clear as to who received the payment and
what was the mode of making of such payments. The Samiti noted that these
invoices were not in book form but were in the form of loose papers and did
not bear any book number. No evidence was, according to the Mandi Samiti,
produced by the appellant regarding the decision of the company’s marketing
department in connection with the stock transfer and in connection with the
directions given to the Aligarh office for transfer of a particular
consignment sent to a particular destination and in a particular quantity.
55. The Samiti also noted that the appellants had not produced any
evidence to show that the C&F agents were not authorized to settle the
bargain for sale of goods and were supposed to simply follow the directions
of the company as regards the delivery of specified quantity to a specified
party upon receipt of payment. No evidence regarding instructions to the
C&F agents was adduced before the Mandi Samiti to prove that the company
continued to exercise complete dominion over its stocks and also the power
to sell the goods and to receive payments kept in the custody of the C&F
agent.
56. Suffice it to say that the Mandi Samiti appreciated each piece of
evidence and found the same to be insufficient to hold that the sale
transactions had, in fact, taken place outside the mandi area so that the
presumption arising under Section 17(iii) of the Act stood rebutted. The
Director exercising powers of the Mandi Parishad has in its order dated
25th September, 2004 once again evaluated the evidence and concurred with
the view taken by the Mandi Samiti.

57. In the light of the legal position stated in the earlier part of this
order, it is neither feasible for us to embark upon an exercise of re-
appreciating the entire material or to substitute our own findings for
those recorded by the Mandi Samiti and the Director/Mandi Parishad. So
long as the finding recorded by the Mandi Samiti and the Mandi Parishad are
not irrational or perverse, and so long as the view taken by them is a
reasonably possible view, this Court would not interfere.

58. In course of arguments at the Bar, we repeatedly asked Mr. Chandra as
to why the appellants had failed to adduce the material which would throw a
flood of light as to the true nature of the transaction within or outside
the mandi area. Mr. Chandra’s reply was that the material was available
and could be produced if so required. Some of this material which was with
the appellant but was not produced was sought to be introduced even at the
stage of hearing before us, while the rest could, argued Mr. Chandra be
laid before the Samiti, if an opportunity to do so could be granted to the
appellant.

59. We regret our inability to accede to any such request. We do not
think that a party who has had ample opportunity before the authorities
below, to substantiate its claim can have the luxury of either producing
material for the first time in the Supreme Court or ask for a remand to
enable it to do what it ought to have done at the appropriate stage. It was
not the contention of the appellants that they were not given a fair
opportunity to prove their case before the authorities below. As a matter
of fact, orders passed by the Mandi Samiti and the Mandi Parishad show that
sufficient opportunity was indeed afforded to the appellants and the matter
had remained pending for a number of years before those authorities.

60. Mr. Chandra contended that the appellants had been requesting the
authorities to indicate as to what kind of material would satisfy them but
since the authorities had failed to respond to that query the appellant had
not produced the bulk of the material which was relevant and available with
them. We do not think that such a procedure was legally permissible or even
called for in the facts and circumstances of the case. As to what material
would be sufficient to prove the case of the party who goes to the Court
for relief is a matter for the party or those in charge of its legal
affairs to determine. No litigant can ask for guidelines from the Court or
statutory body as to the evidence which the party should adduce to
substantiate its claim. The query made by the appellants as to what
material if adduced would satisfy the authorities was, therefore, misplaced
and a red herring to say the least. This is particularly so when the
appellants were in no way handicapped on account of lack of resources or
capacity to get the best of legal advice. Companies with such tremendous
resources as the appellants before us cannot find a shortcut to the
discharge of their obligations under the law by asking the Court or the
authority concerned to indicate as to what kind of evidence would be
sufficient in its opinion to entitle them to the refund of the amount paid
or payable towards market fee.

61. So also, no remand ought to be made only to enable a party to produce
additional material. A remand is neither mechanical nor a routine affair.
If there is nothing wrong in the orders under challenge, there is no
question of interference with the same. There is no reason for this Court
to set the clock back and start a process which would take the parties
another decade or so to come to terms with the problem.

 

62. In the result these appeals as also W.P. (C) No.144/2005 fail and are
hereby dismissed with cost assessed at Rs.15,000/- in each case.

 

 

……………………………………J.
(T.S. THAKUR)

 

 

 

……………………………………J.
(DIPAK MISRA)
New Delhi
March 23, 2012

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